Milhon v. Brown

• Decision Date: 11 October 1957
• Docket Number: No. 18837,18837
• Citation: 145 N.E.2d 307,127 Ind.App. 694
• Parties: Zona V. MILHON, Appellant, v. Mary Katherine (Catherine) BROWN, Appellee.
• Court: Indiana Appellate Court

Page 307

145 N.E.2d 307

127 Ind.App. 694

Zona V. MILHON, Appellant, v. Mary Katherine (Catherine) BROWN, Appellee.

No. 18837.

Appellate Court of Indiana, In Banc.

Oct. 11, 1957.

Clinton H. Givan, Indianapolis, Charles H. Foley, Martinsville, for appellant.

Gilbert W. Butler, Martinsville, for appellee.

COOPER, Presiding Judge.

Appellee's petition for rehearing urges that our opinion contravenes the ruling of the Supreme Court of Indiana in the following cases: Pittsburgh, C., C. & St. L. R. Co. v. Stickley, 1900, 155 Ind. 312, 58 N.E. 192; Rosenmeier v. Mahrenholz, 1913, 179 Ind. 467, 101 N.E. 721; and Echterling v. Kalvaitis, 1955, 235 Ind. 141, 126 N.E.2d 573.

The cases cited by the appellee do not aid him under the evidence in the case at bar nor does this court's opinion contravene the rulings of the Supreme Court in said cases.

In the case of Pittsburgh, C., C. & St. L. R. Co. v. Stickley, supra [155 Ind. 312, 58 N.E. 193], the evidence shows that a fence had been built or located at a place the parties thought the true line to be; that a house had been built upon the land and other improvements made. Twenty-five years later it was discovered that the fence was not on the true line, the old fence was torn down and a new fence was erected on the true line. In that case the evidence disclosed actual possession, improvements to the land and also all the elements of adverse possession. The pertinent part of the Supreme Court's ruling under such evidence was, 'The possession for 25 years was continuous, open, peaceable, and under a claim, established by evidence, that the old fence was the true boundary,--a claim that appellant acquiesced in until it was too late to object.'

In the Rosenmeier case, supra [179 Ind. 467, 101 N.E. 723], the evidence disclosed that one Meinert and Opperman, landowners, located a line boundary and upon that line a fence was built and maintained for forty years and for that period of time it was recognized as the true line by the parties. Under those circumstances, the Supreme Court stated, 'It has been decided many times in this state that the location of a division boundary fence, acquiesced in and acted upon, and the premises improved and used up to the line by each owner for 20 years, becomes the true line.' (Our emphasis.)

The Echterling case, supra [235 Ind. 141, 126 N.E.2d 576], is another line-fence case in which the Supreme Court stated, 'Substantial evidence shows that the appellees and their...